The UK government was “blinded” by financial imperatives when it cut the winter fuel payment without due consideration of the impact on vulnerable people, a court has heard.
Pensioners Peter and Florence Fanning are taking legal action against the decision to remove the universal element of the benefit.
The change was announced by Chancellor Rachel Reeves last July, which later led to the Scottish government following suit.
Mr and Mrs Fanning, from Coatbridge in North Lanarkshire, are arguing both governments failed to adequately consult with those of pension age and did not release an equality impact assessment on the changes.
The Court of Session in Edinburgh is being asked to rule on whether the decision was unlawful.
This would allow the petitioners to ask the court to, in effect, set aside the policy and restore the winter fuel payment to all.
Representing the couple, former MP Joanne Cherry KC told the court on Thursday there had been an “abject failure” to carry out an equality impact assessment (EIA), as well as a failure to consult people of pension age who would be affected by the change.
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She added the decision may also be “unlawful for reasons of irrationality and unreasonableness”, because, she claimed, ministers knew it would cause “significant excess winter deaths” and jeopardise the health of “vulnerable pensioners”.
She said the decision was taken in the knowledge it would result in 100,000 pensioners falling into relative poverty, and 50,000 into absolute poverty.
“The respondents did not approach the matter with due diligence, and did not give consideration to all competing interests,” she said.
“They were blinded, perhaps one might say understandably, by financial imperatives.
“But that does not absolve them from their legal obligations, including their obligations under the Human Rights Act.”
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She said the first respondent – the UK government – was bound by its obligations under the 2010 Equalities Act, while the second respondent – the Scottish government – had similar requirements under regulations dating from 2012.
“There’s overwhelming evidence in this case that the first respondent failed to properly carry out an EIA in relation to the policy decision, and failed to discharge its duty under section 149 of the 2010 Act,” she said.
“If that’s correct then the policy decision and the regulations are tainted by that failure.”
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Ms Cherry told the court the Scottish government had been placed in a “dilemma” by the UK government’s decision to cut the payment, as it resulted in an 80% cut to the funding it received for a universal winter fuel payment.
She said Westminster’s decision had therefore had a “direct effect” on Holyrood, and that “but for” that decision, the Scottish government would have continued to pay a universal benefit this year.
However, Ms Cherry said this did not “absolve” the Scottish government of its obligations, explaining: “Financial constraints are no excuse for failing to properly comply with the public sector equality duty.”
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The UK government’s representative Andrew Webster KC said he did not “shy away” from the fact there had been a “fiscal driver” for the change, noting the chancellor had been seeking to fill a £22bn black hole.
However, he pointed out that as residents in Scotland, Mr and Mrs Fanning had “no entitlement” to the winter fuel payment, as this is only available to people in England and Wales.
Scotland, he explained, has its own winter fuel benefit, called the Pension Age Winter Heating Payment (PAWHP).
He therefore questioned whether the pensioners can be said to have been “directly affected” by the UK government’s decision at all.
“Their entitlement, if any, to PAWHP is determined by the second respondent, choosing how they wish to spend the resources that they have available to them,” he said.
Mr Webster said the only direct effect of the change was on the Scottish government, and that the Fannings therefore had no “direct interest” in relation to a decision taken in Westminster.
The hearing continues on Friday.
